WASHINGTON — On the day before the midterm election, Trump administration lawyers asked the Supreme Court to intervene and set aside ballots from 20,000 California voters who the administration says may not be citizens.

“The Court should issue a limited injunction directing California to stop commingling suspected illegal ballots with legal ones, pending completion of the United States’ appeal to the 9th Circuit and further review in this Court,” Solicitor Gen. D. John Sauer wrote in an emergency appeal filed Monday.

He said the court should require “California to segregate mail ballots from persons whom the United States has identified as likely non-citizens. The court should also enter an administrative injunction to that effect while it considers this application.”

It’s not clear whether the court will see this as an emergency.

The appeal goes first to Justice Elena Kagan. She could ask for a response from California, which would take days.

So far, the administration has lost before a federal judge in Los Angeles and twice at the 9th Circuit Court of Appeals in San Francisco.

Those judges said that Trump’s lawyers were wrong on the Constitution and that their complaint came too late for this election.

California Gov. Gavin Newsom blasted the administration’s appeal after repeatedly being denied its requested relief in lower courts as baseless, and the government’s claim of an emergency as dubious given their own actions in recent days.

“Trump and his administration have never understood what ‘NO’ means, and it appears after being told ‘NO’ three times last week they’re still unsure. After they sat on this for more than three days, they now ask for ‘emergency’ relief on the eve of the election,” Newsom wrote on X. “Just another reason their claims are bogus.”

In May, more than 23 million Californians were registered to vote, and the majority lean in favor of Democrats. But Trump claimed again last week “there are hundreds of thousands of bad ballots, bad votes, in California. Millions, in my opinion.”

More than 6.4 million ballots had already been cast as of Sunday, according to California Secretary of State Shirley Weber’s office. Those ballots are already being counted, per California law.

In mid-October, the Trump administration sued and said federal courts should require California and Los Angeles County to “set aside vote-by-mail ballots from persons identified by the federal government likely to be non-citizens.”

The lawsuit was filed just days after Justice Department officials gave Weber and Los Angeles County Registrar-Recorder/County Clerk Dean Logan a 48-hour deadline to begin cooperating with federal authorities to set aside ballots from about 20,000 voters the administration had determined may not be citizens.

Weber, Logan and a host of other voter advocacy groups and elections experts have questioned the reliability of the administration’s list, which was compiled using a mix of voter data purchased from California and taken from commercial platforms, according to administration officials.

County officials and analysts with the UCLA Voting Rights Project have said the lists contain U.S. citizens and others who are not registered to vote.

Los Angeles County officials have said a review of a subset of 200 voter registrations from the 20,000-person list found that nearly 40% appeared to have been born in the United States, and that 71.2% showed no record of ever voting. A UCLA analysis of the 20,000 names found that more than 4 in 10 weren’t on California’s current voter roll.

Attorneys for the state have argued that complying with the administration’s demands while voting is already underway would be impossible without causing widespread disruptions to the election, and would disenfranchise legitimate voters incorrectly swept up into the administration’s unreliable lists.

Justice Department officials have stressed that they are only asking for ballots from the flagged voters to be set aside while state and federal authorities work together to determine whether the voters are citizens — which they have said could be accomplished relatively quickly if the state would simply comply with its requests to collaborate.

They have also said emergency intervention from the courts is necessary because California law allows ballots to be counted before election day, and once a ballot is cast in person or removed from its mail envelope, it cannot be resegregated from the vote total.

Federal law says that within 90 days of an election, officials may not “systematically remove the names of ineligible voters from the official lists of eligible voters.”

Separately, the Supreme Court also has repeatedly frowned on “late-breaking, court-ordered rule changes” involving elections.

The California court cases have put a spotlight on the state versus federal divide in election law.

Usually, federal laws are deemed to be the “supreme law” and override state laws that are in conflict. No one disputes that U.S. prosecutors may bring criminal fraud charges against noncitizens who violate a federal law by registering with a state to vote and casting an illegal ballot.

But election rules and procedures are different. The Constitution says “the Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each state,” unless Congress acts by law to “alter” its regulations.

The 9th Circuit judges in Friday’s opinion said that “this clause expressly dictates which sovereign has the authority to prescribe the manner in which congressional elections are conducted.”

“If the United States believes different procedures are necessary for vote-by-mail ballots, we believe it should take that suggestion to Congress, not the courts,” said Judges Mark J. Bennett, a Trump appointee, and Gabriel P. Sanchez, a Biden appointee.

Dissenting Judge Patrick J. Bumatay, a Trump appointee, called the administration’s proposal to separate the 20,000 ballots a “reasonable request” and a “modest remedy” for the problem of illegal voting.

The majority cited a 2013 opinion written by the late Justice Antonin Scalia.

“The Elections Clause functions as a default provision,” he wrote. “It invests the states with responsibility for the mechanics of congressional elections,” unless Congress adopts a different rule.

Scalia spoke for a 7-2 majority that rejected an Arizona law that required voters to show documentary proof of their citizenship when registering to vote. In the National Voter Registration Act of 1993, Congress said voters may register to vote by filling out a form and attesting under oath they are citizens.

California does the same under state law.

Scalia said the federal voter registration law did not allow Arizona to adopt new and stricter rules.

In dissent, conservative Justices Clarence Thomas and Samuel A. Alito Jr. said they would go farther to protect the states from federal interference in elections.

“Given states’ exclusive authority to set voter qualifications and to determine whether those qualifications are met,” Thomas said, the Arizona restriction should have been upheld.

“The Constitution reserves for the States the power to decide who is qualified to vote in federal elections,” Alito added.

Last month, Trump’s prosecutors brought fraud charges against 28 lawful immigrants in California who are alleged to have registered or voted in the past even though they are not citizens. They did so under a 1996 immigration law that made it “unlawful for any alien” to vote in a federal election.

Acting Deputy Atty. Gen. Trent McCotter, in a post Monday on X, wrote that California “has refused to work with the federal government to protect against non-citizen voting, which dilutes lawful votes.

“We will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced,” he wrote.

Election law experts were quick to slam the Justice Department’s intervention.

“The Supreme Court should and I believe will reject the administration’s nervy last-minute attempts to meddle in California’s elections,” said Walter Olson at the libertarian Cato Institute. “Mar-a-Lago, which has been calling the shots on this, needs to get this through its head: unless and until Congress provides clear legal guidance to the contrary, the Constitution reserves these decisions to the states.”

The notion of segregating potentially suspect ballots is not a new issue for the Supreme Court.

In November 2020, Alito agreed with Pennsylvania state officials and said they should set aside late-arriving mail ballots to be counted separately.

In response to the COVID-19 pandemic, state election officials and the state Supreme Court agreed to waive part of the state’s law and allow for counting mail ballots that arrived up to three days late.

Republicans strongly objected. That led to Alito’s order. But in the end, the small number of late votes made no difference because the Democratic candidate, former Vice President Joe Biden, decisively won Pennsylvania’s votes and defeated Trump.

The California dispute is different because the state has not changed its voting rules or election procedures. Instead, it is the Trump administration that sought a late change in California’s voting rules and election procedures.

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